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Greg Buckles, an ediscovery process consultant for Reason-eD LLC, a legal discovery consulting firm, says the new regulations can increase the amount of data firms retain, and sometimes they translate to the only standard a firm has for storing and destroying data. "Organizations without external regulatory pressure and structured document-retention programs often find that the interpretations of these discovery agreements become their de facto corporate record-retention requirements," says Buckles.
Andrew Cohen, VP of compliance solutions and associate general counsel at EMC, says FRCP is forcing many firms to formalize processes around ESI requests. "Organizations with repeat litigation are thinking about how to make the process more efficient, including putting in place 'playbooks' for repeatable ediscovery processes and 'source maps' of where their data is located," he says.
Matt Scherocman, a VP at the the Cincinnati-based PCMS IT Advisor Group, urges his small- to medium-sized business clients to pay attention to the new FRCP rules.
"The IT department today is waiting until legal shows up at their door saying, 'We need that data.' In my opinion, it's a lose-lose strategy," says Scherocman. "At some point, you are going to be sued and they are going to ask you for data. Even a well-founded judge, I think, could say 'If you can't produce it maybe it's because you are hiding
--Jerome M. Wendt and Joshua Konkle; additional reporting by Ellen O'Brien (EO)
This was first published in February 2008